What to Do If the Court Strikes Down Obamacare

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Prepare for the worst.Photo: KAREN BLEIER/AFP/Getty Images

I am by no means giving up on the idea that the Supreme Court will uphold the Affordable Care Act. But the specter of disaster is plausible enough that it’s worth entertaining the question of just what will happen if the Court does strike the law down. Will liberals come back stronger than ever? Dust off the post-2004 election plans to secede Blue America and join with Canada? Is there any potential upside here at all?

One possible source of comfort seized upon by liberals like James Carville, and even endorsed in somewhat different, counterintuitive form by conservative Ross Douthat, holds that an adverse Court ruling could help President Obama win reelection. The least popular part of his health-care plan, the individual mandate, would be gone. Liberals would be energized by a wildly activist Republican Supreme Court.

There’s something absurd about comforting yourself in the face of a potential social and Constitutional disaster with the prospect of a political bump. The point of winning elections is to do things like pass health-care reform. So being cheerful that losing health-care reform will help win an election is like being happy the family dog died because now there’s space in your dog house.

In any case, the political ramifications of an adverse ruling seem more harmful than helpful. Yes, liberals will be charged up against the Court, though also more despondent that winning an election matters. Meanwhile, the ruling would be a powerful confirmation to swing voters of the central Republican indictment of Obama. See how far his big government plans went? So far that the Supreme Court said they violated the Constitution! The prospect of handing Mitt Romney the chance to attach the epithet “unconstitutional!” to his opponent would seem to overwhelm any potential benefit.

A somewhat more plausible source of comfort is the prospect that, with the moderate, Republican-designed plan now off the table, Democrats can focus on the one remaining legal avenue to solve the health-care crisis: a single-payer system, like Medicare. This is sort of the liberal Obi-Wan Kenobi option:

In assessing this option, it’s worth bearing in mind that the dead Obi-Wan did not, in fact, become more powerful than Darth Vader could possibly imagine. His new powers seemed limited to appearing as an apparition offering inscrutable advice to Luke Skywalker, whereas the previous, alive version featured the power to slice people’s arms off with a light saber.

So liberals definitely don’t want the Supreme Court to strike down the law. If the Court strikes down just the individual mandate, the best option is to find a way to patch up that feature over time, which would involve Obama winning reelection and gaining some leverage over the Republicans in Congress.

In the face of a total strike down, single payer probably becomes the best option. But it’s not an easy one. The hurdles to passing Obamacare were that Democrats needed to have a majority in the House, the presidency, and 60 senators. The good news to passing single payer is that they probably would only need 50 senators. (Single-payer could be done simply by expanding Medicare, a pure fiscal change that could be accomplished through a budget bill that can pass the Senate with a majority vote.)

But here’s the bad news. A Supreme Court activist enough to strike down Obamacare would probably be activist to strike down single-payer, too. Whatever arguments the conservative justices have concocted to nullify an individual mandate, they can discover different ones to nullify a much more intrusive big-government system. This doesn’t mean we should give up on ever passing such a law. But it does require a different strategic calculation. Instead of the presidency, a House majority and 60 senators, you probably need the House, the presidency, 50 senators and five Supreme Court justices. In the long run, there will be more times when Democrats have five members of the Supreme Court than 60 senators. The Supreme Court will function as a kind of second Senate, an additional political veto point. (Again, all this is assuming the kind of Republican activism that would be entailed be striking down the whole law.)

The even worse news is that getting 50 senators to vote for single-payer will be really, really hard. You’d be asking them to vote to completely destroy a major industry. That is something very few senators, even liberal ones, are willing to do.

It’s not impossible, though. What would have to happen would be for Democratic activists to organize such that supporting single-payer became an essential element of the party platform, like regressive tax cuts are for Republicans — something that, whatever else you may disagree about, a candidate must sign on to in order to be nominated. That process would a massive organizational and financial commitment and take a generation to succeed. That’s not hopeless, and it would be the best option in the face of legal disaster. But the best option, by far, is not to get struck down in the first place.